Reza Nasri: Syria Should Sue Aggressors at the ICJ

Sunday, September 8, 2013

Iran Review Exclusive Interview with Reza Nasri
By: Kourosh Ziabari

The U.S. drum beating for war against Syria over the allegations that the government of President Assad has used chemical weapons against the civilians in the Ghouta district of Damascus has raised many eyebrows across the world as few people expected the seemingly pacifist and peace-loving President of the United States to call for a new war in the Middle East, especially now that there’s no threat posed to the U.S. national security or national interests.

A possible unilateral U.S. war on Syria, if approved by the Congress, while it has not been sanctioned by the UN Security Council, will be another sign of Washington’s inattention to the international law and its fervent attempts to circumvent the internationally-recognized conventions, rules and regulations.

Despite being challenged by Russia and other world powers to present reliable evidence that the Syrian government has used chemical weapons, the United States defiantly continues trumpeting for a “surgical” and “limited” assault on Syria while even the people at the top echelons of the U.S. government are not convinced that President Assad’s government possesses chemical weapons and has used them against unarmed civilians.

In order to discuss the legal aspects of a possible military confrontation between the U.S. and Syria, which seems imminent in the wake of the U.S. House of Representatives’ vote, Iran Review conducted an interview with the prominent lawyer and legal expert Dr. Reza Nasri.

Dr. Reza Nasri is an international lawyer from Geneva’s Graduate Institute of International and Development Studies (HEI), specializing in Charter and foreign relations law. He has published, among other subjects, on the role of the Security Council in the Iranian nuclear dossier, the legality of extraterritorial sanctions, the legality of attacking nuclear facilities under IHL, cyberattacks as use of force and the legal effects of threatening Iran during the course of negotiations. He is currently working on a new book entitled “The legal aspects of Iran’s nuclear program.”

In this interview, we explored the legal basis for the launching of an attack against Syria in the absence of credible evidence proving Syrian government’s use of chemical weapons, the legitimate reaction of Syria to such an attack and the role of Security Council and international courts in managing the current crisis.

What follows is the text of the interview.

Q: The UN Security Council is the principal international body that is charged with maintaining peace and security in the world. It has several mechanisms through which it can settle the international disputes and replace violence and confrontation with peace and reconciliation. This multinational organization hasn’t authorized a military option for the crisis in Syria yet. Why has the United States government decided to take action unilaterally then? Won’t such a unilateral military strike be a contravention of the UN Charter and the international humanitarian law?

A: The UN Charter’s position on the use of military force is quite clear. Its famous Article 2(4) unambiguously prohibits states from using force against other sovereign states. It allows only two exceptions to this prohibition: Force used in self-defense as provided in Article 51 and force used pursuant to an authorization of the Security Council. In the case at hand, neither exception is satisfied. So, indeed, the United States’ unilateral recourse to force would be a blatant violation of the Charter.

It’s also important to emphasize that despite claims to the contrary, even the controversial “Responsibility to Protect” doctrine (R2P), which some present as the basis for military intervention in Syria, does not do away with Security Council authorization. In fact, the 2005 World Summit Outcome document, that sets out the parameters for the implementation of R2P, clearly speaks of collective action, through the Security Council.

So, as pointed out - save for cases of “self-defense” - there’s no place for unauthorized unilateral use of force in international law.

As for your question on the violation of International Humanitarian Law, I should clarify that IHL is the body of law that regulates the conduct of hostilities once they occur. It is basically a set of rules on the means and methods of warfare that is only triggered when the armed conflict actually begins. So it is too soon, at this stage, to make any pronouncement on U.S. compliance with IHL. But given the United States’ sad record in using illicit weapons or its proven disregard for certain rules of war, which the Guantanamo Bay fortress symbolizes only too well, it’s very important to monitor the situation very closely as soon as the attack is launched.

Q: What do you think about the reasons why the United States has decided to attack Syria? Is it simply that the United States is feeling a humanitarian responsibility and wants to protect the Syrian people against their own government while there’s no evidence showing that the government of President Assad has used chemical weapons? Aren’t the U.S. motives beyond dismantling the Syrian government and removing Assad from power?

A: If the United States were truly concerned about the humanitarian situation in Syria, they would have probably done all they could to stop their key allies in the region from dispatching insanely violent groups like Jabhat al-Nusra in Syrian towns and villages.

Besides, history shows that the United States foreign policy is seldom driven by humanitarian considerations. Why would it be any different in the case of Syria?

I believe that Washington is rather seeking to shift the military balance in favor of the opposition, preferably through a “limited” intervention. This would give the U.S., Saudi, Qatar camp a much better negotiating position as we approach the Geneva II conference.

Over the past few months, Syrian government forces have undoubtedly gained the upper hand by making significant strategic advances in key areas held by the rebels. They have also very effectively secured the capital and created security cordons around key strategic installations. And of course, the Government is enjoying the political fruits of its military victories. But it seems that the United States and its allies are poised to reverse the situation. In fact, France has made no secret of their intentions. The French defense minister, Jean-Yves Le Drian, has very recently declared that the military strikes would aim at “chang[ing] the political dynamic” in Syria.

So, beyond the humanitarian rhetoric, one can easily perceive the real motives.

Q: So, where does this lawlessness lead to? What happens if any world power decides at any time to strike at another UN member state or sovereign nation without the UNSC authorization? Can we expect order and peace in such a world? What can be done to prevent such turmoil from taking place?

A: The greatest long-term cost for such egoistic behaviors would be to render the UN collective security regime completely irrelevant. And this would be the greatest blow to international peace and security, especially for future generations.

Let’s remember that in the pre-Charter world, states could strike at another without any legal constraint. All they needed was to demonstrate that their war was a “just war” - driven by a moral or divine sense of responsibility. In that era, a country could easily launch military strikes against another country presumably to salvage or punish it for what it arbitrary perceived as a valid reason. This subjectivity and quasi-lawlessness in international relations eventually lead to calamities such as the two world wars, which left over 90 million people dead in the past century alone.

The Charter attempted to change this dynamic by establishing a rule-based international order.

Now, undermining this order and going back to that anarchic era again would be nothing less than collective suicide in this nuclear age.

Many wrongfully assume that fancy doctrines such as the doctrine of “humanitarian intervention” are modern progressive notions that were created to save humanity from the rigid and archaic rules of the Charter. But the truth is that the Charter was itself a “response” to an anarchic world where every powerful state could invoke such doctrines to attack and subjugate others.

We also often hear that since the Security Council is “deadlocked” the U.S. and its allies can go around it to push their agenda anyway. I think the term “deadlock”, which emanates from the veto power of one of the P5 states, is used way too casually here. In fact, we often forget that the very architecture of the Charter is deliberately designed to “freeze” actions on which there is no consensus among major powers. In other words, the UN collective security regime requires a “unanimity” among great powers before important security decisions are made. The unanimity is a safeguard to prevent tensions and eventually avoid confrontation among nuclear powers. So, the so-called “deadlock” is not a “flaw” of the system but rather one of its central characteristics. But it seems that Western powers now see fit to go around the UN system whenever there is a disagreement with the course of action they advocate at the Security Council. What they are doing in fact is to dangerously hamper with the “balance of power mechanism” that lies at the heart of the collective security regime.

As to what should be done: The most rational course of action would be for all states to respect the law in text and spirit and avoid the kind of adventurism that might lead to international catastrophes.

Q: As you earlier mentioned here and in one of your articles, you had argued that the United States has a history of forging new legal principles such as “preemptive attack” to legitimize its military expeditions, like what it did in 2003 against Iraq. Is it capable of doing the same with regards to Syria? Is it really this easy to circumvent the international law?

A: In the past few years, we’ve seen new, or abandoned pre-Charter doctrines of international law come to light to justify a particular course of action by the United States. Interestingly, all these doctrines such as “preemptive attack”, “preventive defense”, “humanitarian intervention”, “R2P”, “targeted killing” or redefinitions of certain notions such as the “hot battlefield” are meant to facilitate the recourse to force by powerful states and limit the scope of the Charter’s prohibition on military action rather than serve the cause of peace. We’ve even seen official legal memos emerge from the United States Justice Department justifying “torture” as a legitimate and acceptable mean of interrogation during war, when the U.S. government felt it needed to do so.

So, there is a demonstrable pattern of forging legal principles and justifications to benefit certain positions of the United States.

In the article you mentioned, I rely on this record to predict that if the current Administration fails to convince the world of the legality of its current stance on Syria, its army of official and unofficial lawyers would certainly concoct new legal doctrines to advance their cause anyway, even ex post facto if that’s what it takes.

In fact, this time, fancy legal justifications began even before a better pretext was found to go to Syria. A renowned American scholar, Anne-Marie Slaughter, recently claimed in a Financial Times op-ed that Article 52 of the UN Charter could serve as a legal basis for international military action against Syria. Her claim was immediately echoed by Senator McCain whom referred to her piece in a public session of the Senate.

Now, Article 52 merely recognizes the existence of regional arrangements or agencies such as the NATO for dealing with such matters relating to the maintenance of international peace and security, but according to Slaughter and McCain, the underlying implication of this recognition is that the Charter permits these organizations to act autonomously and go to war without Security Council authorization. (See legal commentary here.)

Of course, this trend of distorting the law can be extremely frustrating, but ironically, we could also read some positive signs into it: It shows, at least, that the evolution of political and international mores has been such that the world’s sole Super-power feels compelled today to justify its actions in legal terms. In other words, long gone are the days when a world leader could simply order an attack on a sovereign state without any sort of restrains. This is probably one of the best achievements of the 20th century.

States, International Organizations, the media and even public opinion around the world now expect military actions not only to be “moral” but also to be “legal”.

This makes the “knowledge of international law” a very useful and accessible tool for countering or at least mitigating the excesses of world leaders.

This is why it is extremely important for countries like ours to pay a particular attention to the development of this field within both our academia and governmental institutions.

Q: Let’s explore the scenarios which may take place if President Obama realizes his plan for attacking Syria. What reactions can Syria show in response to a possible military strike? Is it entitled to file a lawsuit to the International Criminal Court at The Hague or the International Court of Justice? What will be the possible verdict these courts may issue? Will these rulings have a practical guarantee in condemning the U.S. unilateral attack against Syria?

A: Neither the United States nor Syria are party to the Rome Statute, so referring American officials to the International Criminal Court (ICC) would only be possible pursuant to a Security Council resolution, which is, of course, very unlikely to happen.

But seizing the International Court of Justice (ICJ) could be a more feasible legal option.

In fact, in 1999, the Federal Republic of Yugoslavia instituted proceedings at the ICJ against ten members of NATO for their “violations of the obligation not to use of force”. In this particular instance, unfortunately, the ICJ had to dismiss the case on jurisdictional ground as the Federal Republic of Yugoslavia was not a member of the United Nations at the time the case was filed, although the Court did nonetheless take the opportunity to declare its profound concern with the use of force in the Yugoslav territories, which it deemed to “raise very serious issues of international law”.

But in the Syrian case, such jurisdictional obstacles may not arise. In fact, Syria can, as of now, file a declaration to accept the compulsory jurisdiction of the ICJ so to minimize any eventual jurisdictional problems.

If a case is filed during the course of the attacks, Syria can request the Court to issue an interim order to get the assailant to cease its acts of use of force. It can also demand financial reparations for the damages it suffered as a consequence of the attack.

Of course, there is no guarantee that the United States would abide by any court decision – either an interim order to cease aggression or an eventual order to pay reparations, but an ICJ ruling in favor of Syria would undoubtedly be a terrible diplomatic, political and Public Relations defeat for Washington.

Besides, it would greatly contribute to the development of international jurisprudence in matters concerning the illicit use of force.

Q: In the military front, what can be Syria’s response to a possible war on its soil? Is it probable that it hits America’s military bases in the Middle East or even go beyond that and fire missiles into the Israel as the U.S. client state which has played a significant role in fomenting sectarian conflict in Syria in the recent months?

A: Regardless of how the U.S. designates its attack on Syria – whether it calls it a “limited intervention” a “surgical strike” or a full-scale invasion – if an armed attack occurs, Syria has an inherent right to self-defense. Of course, its response must comply with the rules of war (it cannot, for example, deliberately target American civilians), but nothing in international law precludes it from targeting American military objectives in the Middle East or elsewhere.

The legality of a military response against Israel would be much more difficult to establish under international law, unless, of course, if Israel directly participates in the attacks, either through its direct participation as a member of a “coalition”, or by allowing the U.S. to launch its operations from its territory.

Of course, if Syria determines that Israel exerts “effective control” over the terrorist groups and non-state entities that fight against the Government, it will also be able respond to it with force. The same rule applies to Saudi Arabia, Qatar and any other state that is eventually aiding and abetting armed terrorist groups such as Jabhat al-Nusra against the Syrian government. These states could very well be held responsible for the actions of these non-state proxies if it is established that they have “directed or enforced” the perpetration of their acts.

Q: Massive demonstrations have been held across the world in condemnation of the U.S. plans for attacking Syria, and this shows that the public in the West does not have a positive feeling toward a new military adventure in the Middle East. President Obama does not have the public support to start a new war. According to the Chairman of the U.S. Joint Chiefs of Staff General Martin Dempsey, war on Syria can cost $1 billion per month for the United States. How can Obama justify this war for his people and build up popular support among the taxpayers who cannot tolerate the consequences of a new war?

A: President Obama came to office mainly because of his opposition to the invasion of Iraq. In fact, this was one of his major advantages over Hilary Clinton in the primaries – and later over John McCain at the general elections, whom had both voted to authorize George Bush to go to war. Likewise, John Kerry, the Secretary of State, and Chuck Hagel, were known as moderates and pacifists within the U.S. decision-maker circles. Many people around the world even rejoiced over the appointment of Chuck Hagel because of the modest views he had presented over the years on the role of the military in U.S. foreign policy. But it seems that this team’s recent push for war has to a great extent damaged their reputation. It has also discouraged many people that had hoped that a rational or moderate Administration in Washington would make drastic changes in the U.S. approach to world affairs.

Today, there is a deep sense of disillusionment in the public about both President Obama, as a person, and the U.S. political structure as an irreformable system, which remains immune to moderation and rationality.

Of course, the system will try to fight that disillusionment through various techniques. But the truth is that the U.S. Administration is poised to act without both UN and public support. At worse, they probably think, the next Administration - which one likely be a Republican one - will have to deal with its consequences.

Q: And finally, what I want to ask you is about the allegations leveled against the Syrian government on its use of chemical weapons. The U.S. mass media are trying to rationalize the war on Syria by portraying it as a humanitarian intervention. The claim laid by the Secretary of State John Kerry is that the government of President Assad has used chemical weapons, and should be punished for this crime. What about the need for evidence which can substantiate this claim? What if it’s later proved that the government didn’t use chemical weapons?

A: We all remember that the U.S. went to war against Iraq based on completely fictitious and even fabricated “evidence”. They seemed content to have pushed their agenda despite a weak case at that time, but in retrospect, their dishonesty with the world greatly damaged their credibility in the years to come. In fact, we saw how the misleading intelligence leading up to the invasion of Iraq loomed heavily over the British parliament as they discussed their war resolution. And Britain is supposedly the United States closest strategic ally!

In this context, it is fair to say that any “evidence” the U.S. may present to go to war with Syria would be viewed with skepticism by the rest of the world, especially considering that the Obama Administration has not yet responded to the constant calls by other states, namely Russia, to provide proof of Assad’s involvement in the chemical attacks.

If it later turns out, as it has in the case of Iraq, that the U.S. has embarked in another war in the Middle East based on a fraud it is hard to conceive how future administrations would ever recover from this fatal blow to U.S. credibility.

Going to war based on lies would also predictably embroil the U.S. and even individuals at the top of its leadership with all kinds of legal dilemmas in the years to come. The evolution of international criminal law is such that such crimes against peace will ultimately not remain unpunished.